Madhya Pradesh High Court
Ashok Kumar Tripathi vs State Of M.P on 2 April, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:7924
1 WP. No. 2907 of 2012
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 2nd OF APRIL, 2025
WRIT PETITION No. 2907 of 2012
ASHOK KUMAR TRIPATHI
Versus
STATE OF M.P AND OTHERS
Appearance:
Shri Prashant Sharma - Advocate for petitioner.
Shri Shailendra Singh Kushwaha - Government Advocate for State.
ORDER
This petition under Article 226 of the Constitution of India has been filed
seeking the following reliefs:-
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2. It is submitted by counsel for petitioner that departmental charge-sheet was
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2 WP. No. 2907 of 2012
issued to petitioner on the charges that he was posted in bungalow No.16 allotted
to High Court Judge at Gwalior in the capacity of Gaurd. An information was
received that petitioner was sleeping on duty. When he was awaken by concerning
Judge, then it was found that petitioner was under influence of alcohol and
accordingly, he was sent for medical examination. In the medical examination,
presence of alcohol was found in the breath of petitioner. It was also mentioned
that earlier when petitioner was posted in bungalow No.5, he was found sleeping
during normal petrolling. On the next day when petitioner was called in the office
of Guard Commander, then he accepted his mistake and pleaded for mercy and
accordingly, he was pardoned after giving warning. Therefore, chargesheet was
issued on the charge that on 04.08.2007 at about 6:00 a.m. while petitioner was
posted in bungalow No.16 as a Guard, he was found sleeping under the state of
intoxication. This conduct of petitioner is in violation of Clause 3 of Civil
Services Conduct Rule 1969.
3. The petitioner submitted his reply and denied the allegation. It was claimed
that petitioner was unwell and he was suffering from cold and cough. Therefore,
he had consumed syrup which might be containing alcohol and on account of
excessive consumption, presence of alcohol might have been found in the breadth
of petitioner. Since matter is of High Court Judge and petitioner is a member of
uniform and disciplined force, therefore, he cannot say anything. Even doctor has
mentioned the presence of alcohol and not liquor. Petitioner also claimed that in
between 3 to 6 a.m. nobody consumes liquor, although he may have consumed
syrup on account of ill health. In all, he denied that he was found sleeping or he
was found under the influence of alcohol.
4. Departmental enquiry was conducted and evidence of Dr. A.K. Saxena
(PW-15) was recorded. The evidence of Dr. A.K. Saxena which is important for
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adjudication of this case reads as under:-
“म ड . ए.क. सकन मडडकल ऑफ सर ड ल ड डकत लय मर र (ग ०)
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यह कथन ह4 । कथन पढकर हस ० डकय।
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5. Thus, it is clear that Dr. A.K. Saxena had specifically stated in his
examination in chief that there was a smell of alcohol in the breath of petitioner.
Although petitioner had an opportunity to cross-examine Dr. A.K. Saxena with
regard to presence of smell of alcohol in his breath, but he did not put any
question to him in that regard. Only one question was put to Dr. A.K. Saxena that
at the time of medical examination he was in his senses and he was properly
answering the questions put to him.
6. After considering the evidence which has come on record, it was found that
charges levelled again the petitioner were proved and accordingly, punishment of
compulsory retirement has been imposed. Appeal as well as mercy petition filedSignature Not Verified
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by petitioner was also dismissed.
7. Challenging the order of compulsory retirement, it is submitted by counsel
for petitioner that since Dr. A.K. Saxena had found that petitioner was not under
intoxication, therefore, it is not correct to suggest that petitioner had consumed
liquor while he was on duty.
8. It is not out of place to mention here that petitioner had applied for
voluntary retirement which was accepted by order dated 15.10.2007 but as the
departmental enquiry was pending, therefore, the said order was cancelled on the
same day.
9. Considered the aforesaid submissions made by counsel for petitioner.
10. Before considering the factual aspects of the case this Court would like to
consider the scope of judicial review or departmental proceedings.
11. The Supreme Court in the case of Kanwar Amninder Singh Vs. The
Hon’ble High court of Uttarakhand at Nainital Through its Registrar
General decided on 17/09/2021 in Petition(s) for Special Leave to Appeal (c)
No(s).2507/2021, has held as under:-
“The case diary which the petitioner wants to be
exhibited was not permitted by the Enquiry Officer on
the ground of lack of proof for the said document as
required under the provisions of the Evidence Act. Strict
rules of evidence are not applicable to a Departmental
Enquiry. There is no prejudice caused to anyone if the
case diary is placed on record. The case diary which is
shown as exhibit 44 in the application by the petitioner
shall be exhibited as a document in the departmental
enquiry. The departmental enquiry may be expedited and
completed soon.”
12. The Supreme Court in the case of State of Rajasthan and Others Vs.
Heem Singh reported in (2021) 12 SCC 569 has held as under:-
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“37. In exercising judicial review in disciplinary matters, there
are two ends of the spectrum. The first embodies a rule of restraint.
The second defines when interference is permissible. The rule of
restraint constricts the ambit of judicial review. This is for a valid
reason. The determination of whether a misconduct has been
committed lies primarily within the domain of the disciplinary
authority. The Judge does not assume the mantle of the disciplinary
authority. Nor does the Judge wear the hat of an employer. Deference
to a finding of fact by the disciplinary authority is a recognition of the
idea that it is the employer who is responsible for the efficient conduct
of their service. Disciplinary enquiries have to abide by the rules of
natural justice. But they are not governed by strict rules of evidence
which apply to judicial proceedings. The standard of proof is hence
not the strict standard which governs a criminal trial, of proof beyond
reasonable doubt, but a civil standard governed by a preponderance of
probabilities. Within the rule of preponderance, there are varying
approaches based on context and subject. The first end of the
spectrum is founded on deference and autonomy — deference to the
position of the disciplinary authority as a fact-finding authority and
autonomy of the employer in maintaining discipline and efficiency of
the service. At the other end of the spectrum is the principle that the
court has the jurisdiction to interfere when the findings in the enquiry
are based on no evidence or when they suffer from perversity. A
failure to consider vital evidence is an incident of what the law
regards as a perverse determination of fact. Proportionality is an
entrenched feature of our jurisprudence. Service jurisprudence has
recognised it for long years in allowing for the authority of the court
to interfere when the finding or the penalty are disproportionate to the
weight of the evidence or misconduct. Judicial craft lies in
maintaining a steady sail between the banks of these two shores which
have been termed as the two ends of the spectrum. Judges do not rest
with a mere recitation of the hands-off mantra when they exercise
judicial review. To determine whether the finding in a disciplinary
enquiry is based on some evidence an initial or threshold level of
scrutiny is undertaken. That is to satisfy the conscience of the court
that there is some evidence to support the charge of misconduct and to
guard against perversity. But this does not allow the court to
reappreciate evidentiary findings in a disciplinary enquiry or to
substitute a view which appears to the Judge to be more appropriate.
To do so would offend the first principle which has been outlined
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above. The ultimate guide is the exercise of robust common sense
without which the Judges’ craft is in vain.
****
40. In the present case, the respondent was acquitted of the charge of
murder. The
circumstances in which the trial led to an acquittal have been
elucidated in detail above. The verdict of the criminal trial did not
conclude the disciplinary enquiry. The disciplinary enquiry was not
governed by proof beyond reasonable doubt or by the rules of
evidence which governed the criminal trial. True, even on the more
relaxed standard which governs a disciplinary enquiry, evidence of the
involvement of the respondent in a conspiracy involving the death of
Bhanwar Singh would be difficult to prove. But there are, as we have
seen earlier, circumstances emerging from the record of the
disciplinary proceedings which bring legitimacy to the contention of
the State that to reinstate such an employee back in service will erode
the credibility of and public confidence in the image of the police
force.”
13. The Supreme Court in the case of State of Karnataka and another Vs. N.
Gangraj reported in (2020) 3 SCC 423 has held as under:
“8. We find that the interference in the order of punishment by the
Tribunal as affirmed by the High Court suffers from patent error. The
power of judicial review is confined to the decision- making process.
The power of judicial review conferred on the constitutional court or
on the Tribunal is not that of an appellate authority.
9. In State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723, a three-
Judge Bench of this Court has held that the High Court is not a court
of appeal over the decision of the authorities holding a departmental
enquiry against a public servant. It is concerned to determine whether
the enquiry is held by an authority competent in that behalf, and
according to the procedure prescribed in that behalf, and whether the
rules of natural justice are not violated. The Court held as under :
(AIR pp.1726-27, para 7)
“7. … The High Court is not constituted in a proceeding
under Article 226 of the Constitution a court of appeal
over the decision of the authorities holding aSignature Not Verified
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departmental enquiry against a public servant : it is
concerned to determine whether the enquiry is held by an
authority competent in that behalf, and according to the
procedure prescribed in that behalf, and whether the rules
of natural justice are not violated. Where there is some
evidence, which the authority entrusted with the duty to
hold the enquiry has accepted and which evidence may
reasonably support the conclusion that the delinquent
officer is guilty of the charge, it is not the function of the
High Court in a petition for a writ under Article 226 to
review the evidence and to arrive at an independent
finding on the evidence.”
10. In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996
SCC (L&S) 80], again a three Judge Bench of this Court has held that
power of judicial review is not an appeal from a decision but a review
of the manner in which the decision is made. Power of judicial review
is meant to ensure that the individual receives fair treatment and not to
ensure that the conclusion which the authority reaches is necessarily
correct in the eyes of the court. The court/tribunal in its power of
judicial review does not act as an appellate authority to reappreciate
the evidence and to arrive at its own independent findings on the
evidence. It was held as under : (SCC pp. 759-60, paras 12-13)
“12. Judicial review is not an appeal from a decision but
a review of the manner in which the decision is made.
Power of judicial review is meant to ensure that the
individual receives fair treatment and not to ensure that
the conclusion which the authority reaches is necessarily
correct in the eye of the court. When an inquiry is
conducted on charges of misconduct by a public servant,
the Court/Tribunal is concerned to determine whether the
inquiry was held by a competent officer or whether rules
of natural justice are complied with. Whether the
findings or conclusions are based on some evidence, the
authority entrusted with the power to hold inquiry has
jurisdiction, power and authority to reach a finding of
fact or conclusion. But that finding must be based on
some evidence. Neither the technical rules of the
Evidence Act nor of proof of fact or evidence as defined
therein, apply to disciplinary proceeding. When the
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authority accepts that evidence and conclusion receives
support therefrom, the disciplinary authority is entitled to
hold that the delinquent officer is guilty of the charge.
The Court/Tribunal in its power of judicial review does
not act as appellate authority to reappreciate the evidence
and to arrive at its own independent findings on the
evidence. The Court/Tribunal may interfere where the
authority held the proceedings against the delinquent
officer in a manner inconsistent with the rules of natural
justice or in violation of statutory rules prescribing the
mode of inquiry or where the conclusion or finding
reached by the disciplinary authority is based on no
evidence. If the conclusion or finding be such as no
reasonable person would have ever reached, the
Court/Tribunal may interfere with the conclusion or the
finding, and mould the relief so as to make it appropriate
to the facts of each case.
13. The disciplinary authority is the sole judge of facts.
Where appeal is presented, the appellate authority has
co- extensive power to reappreciate the evidence or the
nature of punishment. In a disciplinary inquiry, the strict
proof of legal evidence and findings on that evidence are
not relevant. Adequacy of evidence or reliability of
evidence cannot be permitted to be canvassed before the
Court/Tribunal. In Union of India v. H.C. Goel, (1964) 4
SCR 718 : AIR 1964 SC 364, this Court held at p. 728
that if the conclusion, upon consideration of the evidence
reached by the disciplinary authority, is perverse or
suffers from patent error on the face of the record or
based on no evidence at all, a writ of certiorari could be
issued.”
11. In High Court of Bombay v. Shashikant S.Patil, (2000) 1 SCC
416 : 2000 SCC (L&S) 144, this Court held that interference with the
decision of departmental authorities is permitted if such authority had
held proceedings in violation of the principles of natural justice or in
violation of statutory regulations prescribing the mode of such enquiry
while exercising jurisdiction under Article 226 of the Constitution. It
was held as under : (SCC p. 423, para 16)
“16. The Division Bench [Shashikant S. Patil v. High
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Court of Bombay, 1998 SCC OnLine Bom 97 : (2000) 1
LLN 160] of the High Court seems to have approached
the case as though it was an appeal against the order of
the administrative/disciplinary authority of the High
Court. Interference with the decision of departmental
authorities can be permitted, while exercising jurisdiction
under Article 226 of the Constitution if such authority
had held proceedings in violation of the principles of
natural justice or in violation of statutory regulations
prescribing the mode of such enquiry or if the decision of
the authority is vitiated by considerations extraneous to
the evidence and merits of the case, or if the conclusion
made by the authority, on the very face of it, is wholly
arbitrary or capricious that no reasonable person could
have arrived at such a conclusion, or grounds very
similar to the above. But we cannot overlook that the
departmental authority (in this case the Disciplinary
Committee of the High Court) is the sole judge of the
facts, if the enquiry has been properly conducted. The
settled legal position is that if there is some legal
evidence on which the findings can be based, then
adequacy or even reliability of that evidence is not a
matter for canvassing before the High Court in a writ
petition filed under Article 226 of the Constitution.”
12. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya,
(2011) 4 SCC 584:(2011) 1 SCC (L&S) 721, this Court held that the
courts will not act as an appellate court and reassess the evidence led
in the domestic enquiry, nor interfere on the ground that another view
is possible on the material on record. If the enquiry has been fairly and
properly held and the findings are based on evidence, the question of
adequacy of the evidence or the reliable nature of the evidence will
not be ground for interfering with the findings in departmental
enquiries. The Court held as under:(SCC pp. 587-88, paras 7 & 10)
“7. It is now well settled that the courts will not act as an
appellate court and reassess the evidence led in the
domestic enquiry, nor interfere on the ground that
another view is possible on the material on record. If the
enquiry has been fairly and properly held and the
findings are based on evidence, the question of adequacy
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of the evidence or the reliable nature of the evidence will
not be grounds for interfering with the findings in
departmental enquiries. Therefore, courts will not
interfere with findings of fact recorded in departmental
enquiries, except where such findings are based on no
evidence or where they are clearly perverse. The test to
find out perversity is to see whether a tribunal acting
reasonably could have arrived at such conclusion or
finding, on the material on record. The courts will
however interfere with the findings in disciplinary
matters, if principles of natural justice or statutory
regulations have been violated or if the order is found to
be arbitrary, capricious, mala fide or based on extraneous
considerations. (Vide B.C.Chaturvedi v. Union of India,
(1995) 6 SCC 749 : 1996 SCC (L&S) 80, Union of India
v. G. Ganayutham, (1997) 7 SCC 463 : 1997 SCC (L&S)
1806 and Bank of India v. Degala Suryanarayana, (1999)
5 SCC 762 : 1999 SCC (L&S) 1036, High Court of
Bombay v. Shashikant S. Patil, (2000) 1 SCC 416 : 2000
SCC (L&S) 144].)
*******
10. The fact that the criminal court subsequently
acquitted the respondent by giving him the benefit of
doubt, will not in any way render a completed
disciplinary proceeding invalid nor affect the validity of
the finding of guilt or consequential punishment. The
standard of proof required in criminal proceedings being
different from the standard of proof required in
departmental enquiries, the same charges and evidence
may lead to different results in the two proceedings, that
is, finding of guilt in departmental proceedings and an
acquittal by giving benefit of doubt in the criminal
proceedings. This is more so when the departmental
proceedings are more proximate to the incident, in point
of time, when compared to the criminal proceedings. The
findings by the criminal court will have no effect on
previously concluded domestic enquiry. An employee
who allows the findings in the enquiry and the
punishment by the disciplinary authority to attain finality
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by non-challenge, cannot after several years, challenge
the decision on the ground that subsequently, the criminal
court has acquitted him.”
13. In another judgment reported as Union of India v. P. Gunasekaran,
(2015) 2 SCC 610 : (2015) 1 SCC (L&S) 554, this Court held that
while reappreciating evidence the High Court cannot act as an
appellate authority in the disciplinary proceedings. The Court held the
parameters as to when the High Court shall not interfere in the
disciplinary proceedings : (SCC p. 617, para 13)
“13. Under Articles 226/227 of the Constitution of India,
the High Court shall not: (i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case
the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based.
(vi) correct the error of fact however grave it may appear
to be;
(vii) go into the proportionality of punishment unless it
shocks its conscience.”
14. On the other hand the learned counsel for the respondent relies
upon the judgment reported as Allahabad Bank v. Krishna Narayan
Tewari, (2017) 2 SCC 308 : (2017) 1 SCC (L&S) 335, wherein this
Court held that if the disciplinary authority records a finding that is
not supported by any evidence whatsoever or a finding which is
unreasonably arrived at, the writ court could interfere with the finding
of the disciplinary proceedings. We do not find that even on
touchstone of that test, the Tribunal or the High Court could interfere
with the findings recorded by the disciplinary authority. It is not the
case of no evidence or that the findings are perverse. The finding that
the respondent is guilty of misconduct has been interfered with only
on the ground that there are discrepancies in the evidence of the
Department. The discrepancies in the evidence will not make it a case
of no evidence. The inquiry officer has appreciated the evidence and
returned a finding that the respondent is guilty of misconduct.
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15. The disciplinary authority agreed with the findings of the enquiry
officer and had passed an order of punishment. An appeal before the
State Government was also dismissed. Once the evidence has been
accepted by the departmental authority, in exercise of power of
judicial review, the Tribunal or the High Court could not interfere with
the findings of facts recorded by reappreciating evidence as if the
courts are the appellate authority. We may notice that the said
judgment has not noticed the larger Bench judgments in State of A.P.
v. S. Sree Rama Rao, AIR 1963 SC 1723 and B.C. Chaturvedi v.
Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80 as mentioned
above. Therefore, the orders passed by the Tribunal and the High
Court suffer from patent illegality and thus cannot be sustained in
law.”
14. The Supreme Court in the case of State Bank of India and others Vs.
Ramesh Dinkar Punde reported in (2006) 7 SCC 212 has held a under:
“6. Before we proceed further, we may observe at this stage that it is
unfortunate that the High Court has acted as an Appellate Authority
despite the consistent view taken by this Court that the High Court
and the Tribunal while exercising the judicial review do not act as an
Appellate Authority:
“Its jurisdiction is circumscribed and confined to correct
errors of law or procedural error, if any, resulting in
manifest miscarriage of justice or violation of principles
of natural justice. Judicial review is not akin to
adjudication on merit by reappreciating the evidence as
an Appellate Authority.” (See Govt. of A.P. v. Mohd.
Nasrullah Khan [(2006) 2 SCC 373 : 2006 SCC (L&S)
316], SCC p. 379, para 11.)
9. It is impermissible for the High Court to reappreciate the
evidence which had been considered by the inquiry officer, a
disciplinary authority and the Appellate Authority. The finding of the
High Court, on facts, runs to the teeth of the evidence on record.
12. From the facts collected and the report submitted by the
inquiry officer, which has been accepted by the disciplinary authority
and the Appellate Authority, active connivance of the respondent is
eloquent enough to connect the respondent with the issue of TDRs
and overdrafts in favour of Bidaye.
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15. In Union of India v. Sardar Bahadur [(1972) 4 SCC 618 :
(1972) 2 SCR 218] it is held as under: (SCC p. 623, para 15)
A disciplinary proceeding is not a criminal trial. The
standard proof required is that of preponderance of
probability and not proof beyond reasonable doubt. If the
inference that lender was a person likely to have official
dealings with the respondent was one which a reasonable
person would draw from the proved facts of the case, the
High Court cannot sit as a court of appeal over a decision
based on it. The Letters Patent Bench had the same power
of dealing with all questions, either of fact or of law
arising in the appeal, as the Single Judge of the High
Court. If the enquiry has been properly held the question
of adequacy or reliability of the evidence cannot be
canvassed before the High Court. A finding cannot be
characterised as perverse or unsupported by any relevant
materials, if it was a reasonable inference from proved
facts. (SCR p. 219)
16. In Union of India v. Parma Nanda [(1989) 2 SCC 177 :
1989 SCC (L&S) 303 : (1989) 10 ATC 30] it is held at SCC p. 189,
para 27 as under:
“27. We must unequivocally state that the jurisdiction of
the Tribunal to interfere with the disciplinary matters or
punishment cannot be equated with an appellate
jurisdiction. The Tribunal cannot interfere with the
findings of the inquiry officer or competent authority
where they are not arbitrary or utterly perverse. It is
appropriate to remember that the power to impose penalty
on a delinquent officer is conferred on the competent
authority either by an Act of legislature or rules made
under the proviso to Article 309 of the Constitution. If
there has been an enquiry consistent with the rules and in
accordance with principles of natural justice what
punishment would meet the ends of justice is a matter
exclusively within the jurisdiction of the competent
authority. If the penalty can lawfully be imposed and is
imposed on the proved misconduct, the Tribunal has no
power to substitute its own discretion for that of the
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certainly not a matter for the Tribunal to concern itself
with. The Tribunal also cannot interfere with the penalty
if the conclusion of the inquiry officer or the competent
authority is based on evidence even if some of it is found
to be irrelevant or extraneous to the matter.”
17. In Union Bank of India v. Vishwa Mohan [(1998) 4 SCC
310 : 1998 SCC (L&S) 1129] this Court held at SCC p. 315, para 12
as under:
“12. After hearing the rival contentions, we are of the
firm view that all the four charge-sheets which were
enquired into relate to serious misconduct. The respondent
was unable to demonstrate before us how prejudice was
caused to him due to non-supply of the enquiry authority’s
report/findings in the present case. It needs to be
emphasised that in the banking business absolute
devotion, diligence, integrity and honesty needs to be
preserved by every bank employee and in particular the
bank officer. If this is not observed, the confidence of the
public/depositors would be impaired. It is for this reason,
we are of the opinion that the High Court had committed
an error while setting aside the order of dismissal of the
respondent on the ground of prejudice on account of non-
furnishing of the enquiry report/findings to him.”
18. In Chairman and MD, United Commercial Bank v. P.C. Kakkar
[(2003) 4 SCC 364 : 2003 SCC (L&S) 468] this Court held at SCC
pp. 376- 77, para 14 as under:
“14. A bank officer is required to exercise higher
standards of honesty and integrity. He deals with the
money of the depositors and the customers. Every
officer/employee of the bank is required to take all
possible steps to protect the interests of the bank and to
discharge his duties with utmost integrity, honesty,
devotion and diligence and to do nothing which is
unbecoming of a bank officer. Good conduct and
discipline are inseparable from the functioning of every
officer/employee of the bank. As was observed by this
Court in Disciplinary Authority-cum-Regional Manager
v. Nikunja Bihari Patnaik [(1996) 9 SCC 69 : 1996 SCC
(L&S) 1194] it is no defence available to say that there
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was no loss or profit resulted in case, when the
officer/employee acted without authority. The very
discipline of an organisation more particularly a bank is
dependent upon each of its officers and officers acting
and operating within their allotted sphere. Acting beyond
one’s authority is by itself a breach of discipline and is a
misconduct. The charges against the employee were not
casual in nature and were serious. These aspects do not
appear to have been kept in view by the High Court.”
19. In Regional Manager, U.P. SRTC v. Hoti Lal [(2003) 3 SCC 605 :
2003 SCC (L&S) 363] it was pointed out as under: (SCC p. 614, para
10)
“If the charged employee holds a position of trust where
honesty and integrity are inbuilt requirements of
functioning, it would not be proper to deal with the
matter leniently. Misconduct in such cases has to be dealt
with iron hands. Where the person deals with public
money or is engaged in financial transactions or acts in a
fiduciary capacity, the highest degree of integrity and
trustworthiness is a must and unexceptionable.”
20. In Cholan Roadways Ltd. v. G. Thirugnanasambandam [(2005) 3
SCC 241 : 2005 SCC (L&S) 395] this Court at SCC p. 247, para 15
held:
“15. It is now a well-settled principle of law that the
principles of the Evidence Act have no application in a
domestic enquiry.” ”
15. This Court in the case of Santosh Sondhia Vs. State of M.P. reported in
2023 (2) MPLJ 404 has held that:-
“15. It is well established principal of law that this Court
cannot act as an appellate authority and findings of fact recorded
by the enquiry officer and approved by the disciplinary authority
cannot be interfered with until and unless the finding of fact is
based on no evidence or is perverse.
16. It is the case of the petitioner himself that the witnesses
have supported the allegations leveled in the charge. It is not
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recorded by the enquiry officer are perverse or based on no
evidence.
17. Furthermore, the scope of judicial review in a
departmental enquiry is very limited and this Court can only look
into the procedural aspect and cannot substitute its own finding of
fact. It is well established principal of law that the departmental
enquiry is to be decided on preponderance of probabilities and
strict rule of evidence is not applicable. The Supreme Court in the
case of Union of India and others vs. Subrata Nath decided on 23-
11-2022 in Civil Appeal No.7939-7940/2022 [2022 MPLJ Online
(S.C.) 25 has held as under:
17. In State Bank of Bikaner and Jaipur vs. Nemi
Chand Nalwava, a two Judge Bench of this Court held as
below:
“7.It is now well settled that the Courts will not act as
an appellate Court and reassess the evidence led in the
domestic enquiry, nor interfere on the ground that another
view is possible on the material on record. If the enquiry has
been fairly and properly held and the findings are based on
evidence, the question of adequacy of the evidence or the
reliable nature of the evidence will not be grounds for
interfering with the findings in departmental enquiries.
Therefore, Courts will not interfere with findings of fact
recorded in departmental enquiries, except where such
findings are based on no evidence or where they are clearly
perverse. The test to find out perversity is to see whether a
tribunal acting reasonably could have arrived at such
conclusion or finding, on the material on record. The Courts
will however interfere with the findings in disciplinary
matters, if principles of natural justice or statutory
regulations have been violated or if the order is found to be
arbitrary, capricious, mala fide or based on extraneous
considerations. (Vide B. C. Chaturvedi vs. Union of India,
Union of India vs. G. Ganayutham, Bank of India vs. Degala
Suryanarayana and High Court of Judicature at Bombay vs.
Shashikant S. Patil). [Emphasis laid].
18. In Chairman and Managing Director, V.S.P. and
others vs. Goparaju Sri Prabhakara Hari Babu, a two Judge
Bench of this Court referred to several (2011) 4 SCC 584,
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(1995) 6 SCC 749, (1997) 7 SCC 463, (1999) 5 SCC 762,
(2000) 1 SCC 416, (2008) 5 SCC 569 Civil Appeal Nos. of
2022 @ SLP(C) No. 3524 of 2022 precedents on the
Doctrine of Proportionality of the order of punishment
passed by the Disciplinary Authority and held that:-
“21. Once it is found that all the procedural
requirements have been complied with, the Courts would not
ordinarily interfere with the quantum of punishment imposed
upon a delinquent employee. The superior Courts only in
some cases may invoke the doctrine of proportionality. If the
decision of an employer is found to be within the legal
parameters, the jurisdiction would ordinarily not be invoked
when the misconduct stands proved.”
19. Laying down the broad parameters within which
the High Court ought to exercise its powers under Article
226/227 of the Constitution of India and matters relating to
disciplinary proceedings, a two Judge Bench of this Court in
Union of India and others vs. P. Gunasekaran held thus:-
“12. Despite the well-settled position, it is painfully
disturbing to note that the High Court has acted as an
appellate authority in the disciplinary proceedings,
reappreciating even the evidence before the enquiry officer.
The finding on Charge I was accepted by the disciplinary
authority and was also endorsed by the Central
Administrative Tribunal. In disciplinary proceedings, the
High Court is not and cannot act as a second Court of first
appeal. The High Court, in exercise of its powers under
Articles 226/227 of the Constitution of India. shall not
venture into reappreciation of the evidence. The High Court
can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed
in that behalf;
(c) there is violation of the principles of natural justice in
conducting the proceedings;
(d) the authorities have disabled themselves from reaching a
fair conclusion by some considerations extraneous to theSignature Not Verified
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evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced
by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person could ever
have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit
the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the
High Court shall not:
(i) reappreciate the evidence;
13 (2015) 2 SCC 610 Civil Appeal Nos. of 2022 @ SLP(C)
No.3524 of 2022
(ii) interfere with the conclusions in the enquiry, in case the
same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based.
(vi) correct the error of fact however grave it may appear to
be;
(vii) go into the proportionality of punishment unless it
shocks its conscience.”
20. In Union of India and others vs. Ex. Constable
Ram Karan, a two Judge Bench of this Court made the
following pertinent observations:
“23. The well-ingrained principle of law is that it is the
disciplinary authority, or the appellate authority in appeal,
which is to decide the nature of punishment to be given to the
delinquent employee. Keeping in view the seriousness of the
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for the Courts to assume and usurp the function of the
disciplinary authority.
24. Even in cases where the punishment imposed by
the disciplinary authority is found to be shocking to the
conscience of the Court, normally the disciplinary authority
or the appellate authority should be directed to reconsider the
question of imposition of penalty. The scope of judicial
review on the quantum of punishment is available but with a
limited scope. It is only when the penalty imposed appears to
be shockingly disproportionate to the nature of misconduct
that the Courts would frown upon. Even in such a case, after
setting aside the penalty order, it is to be left to the
disciplinary/appellate authority to take a call and it is not for
the Court to substitute its decision by prescribing the
quantum of punishment. However, it is only in rare and
exceptional cases where the Court might to shorten the
litigation may think of substituting its own view as to the
quantum of punishment in place of punishment awarded by
the competent authority that too after assigning cogent
reasons.”
21. A Constitution Bench of this Court in State of
Orissa and others (supra) held that if the order of dismissal
is based on findings that establish the prima facie guilt of
great delinquency of the respondent, then the High Court
cannot direct reconsideration of the punishment imposed.
Once the gravity of the misdemeanour is established and the
inquiry conducted is found to be consistent with the
prescribed rules and reasonable opportunity contemplated
under the rules, has been afforded to the delinquent 14 (2022)
1 SCC 373 Civil Appeal Nos.____ of 2022 @SLP(C) No.
3524 of 2022 employee, then the punishment imposed is not
open to judicial review by the Court. As long as there was
some evidence to arrive at a conclusion that the Disciplinary
Authority did, such an order becomes unassailable and the
High Court ought to forebear from interfering. The above
view has been expressed in Union of India vs. Sardar
Bahadur.
22. To sum up the legal position, being fact finding
authorities, both the Disciplinary Authority and the Appellate
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Authority are vested with the exclusive power to examine the
evidence forming part of the inquiry report. On finding the
evidence to be adequate and reliable during the departmental
inquiry, the Disciplinary Authority has the discretion to
impose appropriate punishment on the delinquent employee
keeping in mind the gravity of the misconduct. However, in
exercise of powers of judicial review, the High Court or for
that matter, the Tribunal cannot ordinarily reappreciate the
evidence to arrive at its own conclusion in respect of the
penalty imposed unless and until the punishment imposed is
so disproportionate to the offence that it would shock the
conscience of the High Court/Tribunal or is found to be
flawed for other reasons, as enumerated in P. Gunasekaran
(supra). If the punishment imposed on the delinquent
employee is such that shocks the conscience of the High
Court or the Tribunal, then the Disciplinary/Appellate
Authority may be called upon to re-consider the penalty
imposed. Only in exceptional circumstances, which need to
be mentioned, should the High Court/Tribunal decide to
impose appropriate punishment by itself, on offering cogent
reasons therefor.
16. Thus, it is clear that this Court cannot act as an Appellate Authority and
cannot substitute its own finding unless and until the findings of facts recorded by
authorities are found to be based on no evidence.
MLC of the petitioner reads as under:-
“Pt. is fully conscious well oriented to time place and
surroundings
Pupils are equal and reacting.
Smell of alcohol present in breath.
Gait is normal speech is normal.
He has consumed alcohol but is not under intoxication.”
17. In the MLC, it was specifically mentioned that smell of alcohol is present
in breath of petitioner and petitioner has consumed alcohol, but is not under
intoxication. The only question for consideration is as to what was the meaning of
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21 WP. No. 2907 of 2012
“but is not under intoxication”. Consumption of alcohol and presence of smell of
alcohol in breath was specifically mentioned in the MLC. It is well established
principal of law that departmental enquiry is to be decided on the basis of
propondence of probabilities and strict rules of evidence are not applicable and
allegations are not required to be proved beyond reasonable doubt. If a person has
consumed liquor, then with passage of time he would start regaining his
consciousness on account of reduction of effect of alcohol. It cannot be said that if
a person has consumed liquor, then he would not remain in consciousness unless
and until entire effect is washed out from the body. On account of reduction of
effect of alcohol in the blood, a person would start gaining consciousness. At the
most it can be said that petitioner might have consumed liquor about 3 to 4 hours
prior to the medical examination and therefore, he had started regaining his
consciousness. Howerever, presence of alcohol in the breath undoubtedly proves
that petitioner has consumed liquor. This Court has already reproduced the
evidence of Dr. A.K. Saxena. Not a single question was put to the concerned
witness by petitioner regard to the presence of smell of alcohol in his breath or
finding with regard to consumption of alcohol. Since finding with regard to
consumption of alcohol and presence of smell of alcohol in breath have remained
unchallenged, therefore it cannot be said that finding recorded by disciplinary
authorities with regard to the consumption of alcohol is based on no evidence.
18. Now the next question for consideration is as together the punishment of
compulsory retirement is disproportionate to charge levelled against the petitioner
or not.?
19. The Supreme Court in the case of Union of India and Another v. K.G.
Soni reported in (2006) 6 SCC 794 has held as under:
“14. The common thread running through in all these
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decisions is that the court should not interfere with the
administrator’s decision unless it was illogical or suffers
from procedural impropriety or was shocking to the
conscience of the court, in the sense that it was in
defiance of logic or moral standards. In view of what
has been stated in Wednesbury case [Associated
Provincial Picture Houses Ltd. v. Wednesbury Corpn.,
(1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] the court
would not go into the correctness of the choice made by
the administrator open to him and the court should not
substitute its decision to that of the administrator. The
scope of judicial review is limited to the deficiency in
the decision-making process and not the decision. 15.
To put it differently, unless the punishment imposed by
the disciplinary authority or the Appellate Authority
shocks the conscience of the court/tribunal, there is no
scope for interference. Further, to shorten litigations it
may, in exceptional and rare cases, impose appropriate
punishment by recording cogent reasons in support
thereof. In the normal course if the punishment imposed
is shockingly disproportionate, it would be appropriate
to direct the disciplinary authority or the Appellate
Authority to reconsider the penalty imposed. 16. The
above position was recently reiterated in Damoh Panna
Sagar Rural Regional Bank v. Munna Lal Jain [(2005)
10 SCC 84 : 2005 SCC (L&S) 567].”
20. The Supreme Court in the case of Om Kumar and Others Vs. Union of
India reported in (2001) 2 SCC 386 has held as under:-
“70. In this context, we shall only refer to these cases. In
Ranjit Thakur v. Union of India [(1987) 4 SCC 611 :
1988 SCC (L&S) 1] this Court referred to
“proportionality” in the quantum of punishment but the
Court observed that the punishment was “shockingly”
disproportionate to the misconduct proved. In B.C.
Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996
SCC (L&S) 80 : (1996) 32 ATC 44] this Court stated that
the court will not interfere unless the punishment
awarded was one which shocked the conscience of the
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court. Even then, the court would remit the matter back
to the authority and would not normally substitute one
punishment for the other. However, in rare situations, the
court could award an alternative penalty. It was also so
stated in Ganayutham [(1997) 7 SCC 463:1997 SCC
(L&S) 1806]. 71. Thus, from the above principles and
decided cases, it must be held that where an
administrative decision relating to punishment in
disciplinary cases is questioned as “arbitrary” under
Article 14, the court is confined to Wednesbury principles
as a secondary reviewing authority. The court will not
apply proportionality as a primary reviewing court
because no issue of fundamental freedoms nor of
discrimination under Article 14 applies in such a context.
The court while reviewing punishment and if it is
satisfied that Wednesbury principles are violated, it has
normally to remit the matter to the administrator for a
fresh decision as to the quantum of punishment. Only in
rare cases where there has been long delay in the time
taken by the disciplinary proceedings and in the time
taken in the courts, and such extreme or rare cases can
the court substitute its own view as to the quantum of
punishment.”
21. The Supreme Court in the case of Mithilesh Singh v. Union of India and
others reported in (2003) 3 SCC 309 has held as under:-
“9. The only other plea is regarding punishment awarded.
As has been observed in a series of cases, the scope of
interference with punishment awarded by a disciplinary
authority is very limited and unless the punishment
appears to be shockingly disproportionate, the court
cannot interfere with the same. Reference may be made
to a few of them. (See: B.C. Chaturvedi v. Union of India
[(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32
ATC 44], State of U.P. v. Ashok Kumar Singh [(1996) 1
SCC 302 : 1996 SCC (L&S) 304 : (1996) 32 ATC 239],
Union of India v. G. Ganayutham [(1997) 7 SCC 463 :
1997 SCC (L&S) 1806], Union of India v. J.R. Dhiman
[(1999) 6 SCC 403 : 1999 SCC (L&S) 1183] and OmSignature Not Verified
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Kumar v. Union of India [(2001) 2 SCC 386 : 2001 SCC
(L&S) 1039].)”
22. Petitioner was posted as a Guard and it was his duty to remain vigilant. If a
Guard is allowed to consume liquor during his duty hours, then it cannot be said
to be a misconduct having no seriousness. A person whose duty is to protect, then
consumption of alcohol is a very serious misconduct.
23. Considering the misconduct which was alleged and found proved agaisnt
the petitioner, this Court is of considered opinion that punishment of compulsory
retirement cannot be said to be shockingly disproportionate to the charge which
was lavelled against him.
24. Considering the totally of facts and circumstances of the case, this Court is
of considered opinion that no case is made out warranting intereference. Petition
fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Rashid
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